Citation Nr: 1012299
Decision Date: 04/01/10 Archive Date: 04/14/10
DOCKET NO. 05-34 603 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Newark,
New Jersey
THE ISSUES
1. Entitlement to a rating in excess of 50 percent for a
panic disorder.
2. Entitlement to a rating in excess of 50 percent for
bilateral visual field impairment, post facial trauma, with
left ptosis, left hypertropia, left quadranopsia, and right
temporal field defect (hereinafter referred to as an "eye
disability").
3. Entitlement to an effective date earlier than December
19, 2003, for the award of a total rating based upon
individual unemployability due to service-connected
disabilities (TDIU).
4. Entitlement to an effective date earlier than December
19, 2003, for the award of a 50 percent rating for a panic
disorder.
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady,
Attorney
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
The Veteran served on active duty from November 1968 to
December 1972.
These matters are before the Board of Veterans' Appeals
(Board) on appeal of rating decisions of the Department of
Veteran's Affairs (VA) Regional Office (RO) in Newark, New
Jersey. In February 2008, the Board remanded the claims for
additional evidentiary development, and they have now been
returned for further appellate consideration.
In addition to remanding each of the issues listed on the
title page of this decision, the Board, in the February 2008
decision, also remanded the claim of entitlement to an
effective date prior to March 1, 2001, for the payment of
additional benefits for dependents. As to that issue, the
remand called for the RO/AMC (Appeals Management Center) to
issue a statement of the case (SOC) as one had not
previously been provided to the Veteran. This was
accomplished in January 2010, and the claim was denied. The
file before the Board does not contain a substantive appeal
as to this issue. As such, the Board does not have
jurisdiction of the issue. Rowell v. Principi, 4 Vet. App.
9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993). Therefore,
the Board will confine the discussion herein to the
enumerated issues.
The appeal is REMANDED to the RO via the AMC, in Washington,
DC. VA will notify the Appellant if further action is
required.
REMAND
Unfortunately, and for reasons explained below, in order to
comply with the legal duty to assist the Veteran, the Board
finds that it must once again remand the claims on appeal
for additional development action.
Here, in compliance with instruction no. 3of the Board's
December February 2008 remand, the AMC/RO was to obtain all
medical records regarding the Veteran's treatment at the
Lyons, New Jersey VAMC, and the East Orange, New Jersey,
VAMC. Records subsequently added to the record include many
duplicative treatment documents from the East Orange VAMC,
as well as some not previously of record, to include VA
examinations reports from August and September 2009.
The claims file does not contain documentation, however,
that additional treatment records were requested from the
Lyons, New Jersey VAMC. Moreover, in a VA FORM 21-4138
document dated in September 2009, and in the attorney
representative's statement in February 2010, it has been
asserted that additional VA records pertinent to the claims
on appeal are available and should be obtained.
A remand by the Board confers upon the claimant, as a matter
of law, the right to compliance with the remand order.
Stegall v. West, 11 Vet. App. 268 (1998). Where the remand
orders of the Board were not complied with, the Board itself
errs in failing to insure compliance; in such situations the
Board must remand back to AMC/RO for further development.
The Board emphasizes that records generated by VA facilities
that may have an impact on the adjudication of a claim are
considered constructively in the possession of VA
adjudicators during the consideration of a claim, regardless
of whether those records are physically on file. Dunn v.
West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2
Vet. App. 611, 613 (1992). Hence, on remand, the AMC/RO
must obtain all outstanding pertinent medical records from
the above VA facilities, following the procedures prescribed
in 38 C.F.R. § 3.159 as regards requesting records from
Federal facilities.
The actions identified herein are consistent with the duties
to notify and assist imposed by the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114
Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp.
2009)). However, identification of specific actions
requested on remand does not relieve the AMC/RO of the
responsibility to ensure full VCAA compliance. Hence, in
addition to the actions requested above, the AMC/RO should
also undertake any other development or notification action
deemed warranted by the VCAA prior to readjudicating the
matters on appeal. The AMC's/RO's adjudication of the
appeal should include consideration of all evidence added to
the record since the last adjudication of the claims.
Accordingly, the case is REMANDED for the following action:
1. Obtain all VA treatment records and
progress reports relevant to the
Veteran, including but not limited to
any records located at the Lyons, New
Jersey, VAMC, and the most recent
records East Orange, New Jersey, VAMC,
dated subsequent to March 2003 that are
not already of record. If no records
are available, the claims folder must
indicate this fact and document the
attempts made to obtain the records from
each facility.
2. After the requested development has
been completed, and after undertaking
any other development deemed
appropriate, re-adjudicate the issues on
appeal. If the benefits sought remain
denied, the Veteran and his
representative should be furnished with
a supplemental statement of the case
(SSOC) and be afforded an opportunity to
respond before the record is returned to
the Board for further review.
The Appellant has the right to submit additional evidence
and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Appeals for Veterans Claims. This remand is
in the nature of a preliminary order and does not constitute
a decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).